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Alexandria Family Law Attorney on Interstate Child Custody

Alexandria family law attorney Carolyn Grimes discusses interstate issues with child custody and support in relation to divorce.

Some unmarried, separated, and divorced parents will at some point face interstate child custody and support issues. This occurs when one parent wants to leave the state or country, with or without their children. Alexandria family law attorney Carolyn Grimes examines some of the most common interstate issues parents can be faced with and offers advice on how to handle these situations.

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Hosted by: Diana Shepherd, Editorial Director, Divorce MagazineGuest speaker: Carolyn Grimes, Family Lawyer
Carolyn Grimes, a family and divorce lawyer, is a partner at the law firm Wade Grimes Friedman Sutter & Leischner, PLLC in Alexandria, Virginia. The firm provides full-service family law representation to clients living in Northern Virginia. Named a top attorney in 2015 by Washingtonian magazine, Grimes practices law in a collaborative model. To learn more about Grimes and her law firm, visit www.oldtownlawyers.com.

Read the Transcript of this Podcast Below.

Is there a difference between joint legal and physical child custody in Virginia?

Yes. Joint legal custody in Virginia refers to the decision-making for the child. Parties here either have joint legal custody or one party has sole custody. With joint legal custody, parties are to share major decision-making regarding the child’s health, education, and welfare. Now they can agree to a lot more structure than that, but that’s the default under the law. Physical custody is the time that the child spends with each parent, and in Virginia, we have a child support concept called shared custody, where if the child spends at least 91 overnights with each parent, then they have what we call shared physical custody, and that affects the child support.

Physical and legal custody terms vary a lot state by state. A lot of clients ask me if they can get full custody. There is no such term in Virginia, and generally all states have visitation schedules. Sometimes they call it custodial time. Sometimes they call it timesharing. The terms vary state to state, but the concept of who has legal responsibility for decision-making, and where the child lives during the week, is in effect in all states. They just have slightly different terms.

How is child custody decided in Virginia, and do fathers and mothers have an equal chance of getting custody these days?

Child custody is decided under what’s called the best interest of the child. We have a statute that enumerates many factors for the court to consider the best interest of the child, which relate to the child’s age and developmental needs, and the role each parent has played in the child’s upbringing so far and other factors. A critical factor in Virginia is what we call the propensity of one parent to encourage the other parent’s relationship with the child. If you’re constantly blocking your spouse from seeing the child, that is not a custody factor in your favor. Do fathers and mothers have an equal chance of getting custody these days? Yes, these days.

When I started work, which was a long time ago, there used to be a doctrine called the “tender years doctrine” in a lot of states, and it was a law in Virginia that a child under the age of five or seven was automatically given to the mother because it was in its tender years, meaning its very young years. That has specifically been outlawed and the custody statutes are gender neutral, and they have been in Virginia for well over 20 years, and most other states have that as well.

If one parent takes the children out of Virginia or the U.S. without the other’s consent, what are the legal options for having the children returned, and how is compliance enforced?

There are a couple different scenarios. First of all, you’re in an intact marriage and your spouse takes the kids to visit Grandma and decides not to come back. You have to decide whether your spouse has left you or not, and whether you need to file for divorce and ask the court for an order to return the children to you. If your spouse announces that they’re leaving, they’re taking the kids, they’re going home to New Jersey to see Mom, you also have to decide whether to file.

If you decide whether to file for divorce in Virginia or whether to file a custody action in New Jersey to have the children returned, interstate custody actions are governed, and that’s a loose term, by a statute called the Uniform Child Custody Jurisdiction and Enforcement Act. All of the states have enacted some version of this act. They all don’t have the same version, but everyone has some version, and what the UCCJEA does is try to define which state the custody battle should be in.

Most of them have the version that says, where the child’s home state was for the prior six months of the filing is where the custody case should be filed. If you live in Virginia, and your spouse takes off with the children and goes to Ohio, and they’ve been gone for three weeks and you realize they’re not coming back, Virginia is a home state. You would want to file the custody action, and you may want to file divorce depending on the whole circumstances in Virginia. Ask a Virginia court to order that the child be returned to Virginia. Virginia has jurisdiction authority over the spouse who left, under its laws governing matrimonial domicile and custody.

If the state of Ohio, which has a pretty close version of the UCCJEA that we do, they have the same rules, and they’ll recognize that even though she’s in Ohio now with the kids, that Virginia has jurisdiction. Sometimes you have to get the court order in Virginia that says, “Hey, return the child”, and you have to serve your spouse in Ohio, and then take your Virginia court order to an Ohio court to get an Ohio court to enforce it.

What also typically happens is that you file in Virginia, she files in Ohio undoubtedly alleging an emergency – and there may well be an emergency – and then the judges, the Ohio judge and the Virginia judge are supposed to talk, literally talk, and decide who has the better jurisdiction, the better claim to jurisdiction, and they decide which state will have the case. One defers jurisdiction to the other state, and then you get your jurisdiction decided. You actually have to have a hearing about whether the children should be returned, and who should have custody.

That’s when you’re starting. If you’re already divorced or if you’ve never been married, you just jump ahead to the custody hearing. It could be another wrinkle, if there already is a court order saying who has custody and the parent who leaves doesn’t have custody. They’ve kidnapped the children, and the Parental Kidnapping Prevention Act kicks in then, which is basically more emergency jurisdiction to determine which court has authority, but it’s also a stronger statute that allows the children to be ordered back almost immediately.

If the parent who leaves the state does have regular custody, then basically that’s what we call a relocation custody case, where you have to file. You couldstill have the children returned, because Virginia is where they have been living, but what the other parent is trying to do is move without court permission – and they generally file in the other state, and you have the battle. But the children being ordered to come back depends a lot more on the current court order, and then who can best take care of the children in that scenario.

If they take the children out of the country, then if that country is a signatory to what’s called the Hague Convention – the Hague Convention is what governs international child custody and abduction suits, and you can look it up online and see who’s a signatory, because a couple of countries you’ll be surprised are not signatories – you then have to take your U.S. court order and enforce it in that country’s court. They are supposed to follow the same jurisdictional standards as to whether the children should come back or whether the court action should be in the U.S. or in the other country.

What are the factors to consider when dealing with a foreign court in an international custody dispute?

First, you have to determine whether that court is a signatory to the Hague Convention. If they are not a signatory to the Hague Convention, they are not going to obey a United States court order. You would have to consider going to court in that country, to try to enforce your U.S. court order there. Depending on the country, that can be very tricky. In a number of countries, children are considered chattel, property, and they are the property of the father in those countries.

If a child is taken to a country where children aren’t chattel, but they’re not signatories to Hague Convention summaries, then it’s a matter of trying to enforce it. Most courts are very parochial in that circumstance if they’re not party to the Hague Convention, where they will want the custody hearing there. They tend to favor their own country, but it’s not impossible to get those children back. Basically, you end up having another custody hearing in the other country.

If one parent has primary custody of the children, can he or she move to a different state or country with them? If so, how would such a move affect visitation schedules?

In Virginia, parents have to give the other parent 30 days’ advance notice of the intent to move, and the purpose behind that is to give the other parent time to object to the move. Let’s say they do give the 30 days’ notice that they want to move to Mississippi, and the other parent objects; they file a court action here asking for an order to bar the children moving until there can be a hearing. Those are relocation custody cases, and what those boil down to is, is it better for the children to move or to stay here? It’s still decided on the best interests of the children, but the main factors that a Virginia court will consider, and this is probably typical in other courts, is, what’s the urgency of the moving parent’s reason to move and how involved has the nonmoving parent been in the child’s life? If the nonmoving parent only sees the child in the summer for some reason, the Court may let the parent move, but if the nonmoving parent has a child every week or part of each week, it’s very difficult in a Virginia court to be allowed to move unless there is an urgent matter that cannot be addressed in Virginia.

Once you have school-age children, the visitation schedules are dictated by the school year. I have clients that do every other weekend visitation with a four-hour driving distance from Northern Virginia. If you move to Raleigh, or you move to New York City, and you really like to drive, you can still see the kids every other weekend. But beyond four hours, courts generally don’t let the children drive on the weekends.

When you’re talking school breaks, if you move across the country, if you move to California, you’re going to see the child only during the school breaks. You’re not going to get all of the summer because the child still needs to be home a bit and the other parent still needs some vacation, especially if they’re working parents. It changes the visitation radically. You can also ask for Skype, FaceTime, phone calls whenever you’re in the area where the child has moved. You generally get to see the child, unless it’s the other parent’s Christmas, for example. But it changes things radically for the visitation.

If a paternity test discloses that a father is not the child’s biological parent, even if he believed he was and acted as a child’s parent for years, does the mother have the right to move away with the child?

In Virginia, for years, if you had ever acknowledged a child as yours, even if you later obtained a paternity test that proved the child wasn’t yours, the child was still yours legally. The Virginia courts would not let you out of child support primarily, but that law has finally been changed. If you get a paternity test, and prove the child isn’t yours, then you don’t have custody of the child anymore. That’s one wrinkle.

The other wrinkle is that on the other side of it, Virginia custody statutes have been enlarged to include what are called persons with a legitimate interest in the custody of the child, which would be essentially a parent in this position who thought the child was his, raised the child as his, and then finds out, “Oh, it’s not my child.” Then the child may or may not know that the father is not his or her father. That person has a legitimate custody interest, and they can petition for custody, and to stop relocation, just as a biological parent would, and the same factors apply.

Those cases tend to turn, also besides the factors I mentioned, on whether the child knows that the person is not their biological parent, and whether that’s already had an effect on the relationship or not. There are cases where the non-biological parent gets custody of the child because they are actually bonded more closely to the child than the biological parent. Rare, but it happens.

How does child support work if the custodial parent lives in a different state or even country?

Interstate child support is governed by the Uniform Interstate Family Support Act (UIFSA) and that allows for enforcement of child support between states without the person getting support having to run around every state and track them down. All states in the U.S. are required to have something similar to what we call the Division of Child Support Enforcement to enforce these. You can go through them. Most of them are backed up a little, or you can get a garnishment and income deduction order out of your state court, and send it to an interstate employer, because employers are also bound to honor income deduction orders on an interstate basis as part of federal commerce clause that has people do things across state lines.

Out of the country, is a little bit difficult because the employers are not bound to accept income deduction orders. If it’s a U.S. employer and they’re working out of the country, send it to U.S. employer headquarters, and they have to honor it. You may have to force them to, but they have to honor it. If it’s a completely foreign employer who isn’t going to honor yours, it’s difficult. You should still open up action with your local child support agency because they will keep it on file and they will never let it go. They can also garnish tax refunds, if the non-paying parent has a tax refund, and that generally gets people’s attention. But the Uniform Interstate Family Support Act is a garnishment vehicle, and you can also go into the other state courts directly yourself.

If the payor has moved to another country, is there any way that the recipient of child support can guarantee continuing to receive payments?

Only if there’s an income or an asset you can attach. Once child support goes into arrears, it’s a judgement by operation of law in Virginia, and in most other states. Generally, to enforce it, you need to get a paper judgment. You need to go to court and have a court rule that he or she owes you $40,000, and then it’s a judgment like any other that can be collected. It can be garnished against the wages and it can be collected against an asset. If you can find an asset, you can garnish it. Retirement assets, private or civilian, can be garnished for child support and spousal support. The biggest problem with people who move out of the country is that it’s hard to find these assets. If they’ve got a house here, that’s a judgment.

You can file a judgment against it. It’s going to be a lot of work and a lot of pain, but it’s difficult to actually get the money out of them any other way. It’s a crime not to pay child support. If you get them convicted of a crime in absentia, and they put it in the crime computer, when they come back in the country, they my show up on the “wanted” list and be arrested.